This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Anchor Paper Company,
Department of Employment and Economic Development,
Filed August 23, 2005
Department of Employment and Economic Development
File No. 14507 04
Thomas H. Boyd, Matthew D. Spohn, Winthrop & Weinstine, P.A., Suite 3500, 225 South Sixth Street, Minneapolis, MN 55402 (for respondent Anchor Paper)
Lee B. Nelson, Linda A. Holmes, Department of Employment and Economic Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent Department)
Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Forsberg, Judge.
By writ of certiorari, relator Roderick O’Neal challenges the order of the Department of Employment and Economic Development’s senior unemployment review judge (SURJ) disqualifying him from receiving unemployment benefits. Because the record reasonably supports the SURJ’s findings and because the department’s determination that relator committed employment misconduct is correct, we affirm.
employed by respondent Anchor Paper Company from August 30, 1999 to August 24,
2004. Relator stated that he was
discharged after missing three days of work for a doctor’s appointment and a family
I was told that I had to wait to go and see my mother but I went anyway[,] which I had agreed [not to do] until I [got] some vacation time back but it was my mother’s birthday so I went[.] [S]orry about that[,] [it won’t] happen again.
Relator included that he knew “it was wrong to do.”
It was determined that relator was disqualified for unemployment benefits because he was discharged for attendance-related misconduct, and relator appealed. An unemployment law judge (ULJ) held a telephone hearing in which relator testified and to which respondent submitted records from relator’s personnel file.
During the hearing, relator admitting missing at least one scheduled workday and part of another. He agreed that he knew permission was required prior to taking days off. He also testified that there were supervisors he could have talked to about leaving town. Relator testified, though, that he obtained approval by leaving a voice mail for his immediate supervisor, who was on vacation at the time. Relator denied writing that he knew he was not supposed to go until he had vacation time but went anyway.
hearing, the ULJ found that a preponderance of the evidence proved relator was
discharged for misconduct and concluded he was not entitled to benefits. The ULJ found that relator had a history of
unexcused absenteeism when he had no vacation or sick time available and that
he missed work on three days to visit his mother in
D E C I S I O N
certiorari appeal, we accord particular deference to the decision of the senior
unemployment review judge. Tuff v.
Knitcraft Corp., 526 N.W.2d 50, 51 (
employees are discharged for employment misconduct, they are disqualified from
receiving unemployment benefits. Minn.
Stat. § 268.095, subd. 4 (2004).
“Employment misconduct” is defined as “any intentional, negligent, or
indifferent conduct, on the job or off the job (1) that displays clearly a
serious violation of the standards of behavior the employer has the right to
reasonably expect of the employee, or (2) that displays clearly a substantial
lack of concern for the employment.”
have the right to create and enforce reasonable rules relating to
absenteeism. Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (
case, relator admitted in his written statement that, just prior to his
discharge, he was absent from work on scheduled workdays without giving advance
notice or obtaining his supervisor’s permission to take a vacation day or
unpaid leave. He also testified that he
knew he was supposed to get permission from his supervisor to take a day off of
work. Relator further admitted that he had
no accrued vacation time at the time of his absence. Respondent submitted documents chronicling
relator’s absences just prior to his discharge, as well as documentation of
several previous instances of unexcused absences, tardiness, and failure to
complete a scheduled shift. And respondent
submitted evidence of at least two prior warnings about unscheduled absences,
including a May 25, 2004 letter stating that relator had depleted his vacation time
and could not take additional time off without pay unless it was an emergency
situation. Relator acknowledged receipt
of the warning letter by signing it. Relator
submitted no evidence that he missed work because of an emergency or medical situation.
The SURJ’s findings are more than adequately
supported by the record evidence. Any
conflicts in the evidence were resolved in favor of respondent based on
credibility determinations that this court will not disturb. See Whitehead
v. Moonlight Nursing Care, Inc., 529 N.W.2d 350, 352 (
We conclude that relator’s actions constituted employment misconduct. Relator argues in his brief that he only missed two days of work and that it was for his mother’s birthday. But relator had received previous warnings for no-call/no-shows and unexcused absences and he was warned in a May 2004 letter that last-minute, non-emergency absences without prior approval were not acceptable. His statements that he knew “it was wrong to do” and that he knew he could be discharged for such conduct display his awareness that leaving a voice mail for his supervisor shortly before or after relator left town was unacceptable. His admissions that he had agreed not to go until he had vacation time to use, but went anyway, reflects a clear lack of concern for his employment.
to assert in his written submission to this court that respondent used his
absenteeism as a pretext for his discharge and that his discharge was actually
due to animus against him on the part of other employees, including his
supervisor and the supervisor’s brother.
But relator’s claims of racial discrimination and favoritism are based
largely on material that is outside the record on appeal. Relator’s brief to this court is approximately
10 handwritten pages, consisting largely of factual allegations not submitted
to the ULJ or testified to during the hearing. The record on appeal consists of the papers
filed in the trial court, exhibits, and the transcript of the proceedings, if
any. Minn. R. Civ. App. P. 110.01; see also Minn. R. Civ. App. P. 115.04,
subd. 1 (explaining that Minn. R. Civ. App. P. 110.01 applies to appeals by
writ of certiorari). “It is well settled
that an appellate court may not base its decision on matters outside the record
on appeal, and that matters not produced and received in evidence below may not
be considered.” Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Under a recent change by the legislature, the decision is now made by the
senior unemployment review judge rather than the commissioner’s representative.
Our standard of review of the decision
has not changed. 2004